State Of Maha vs Kundlik Sugandhrao Aravade
2017 Latest Caselaw 2427 Bom

                                                                   670.03appeal
                                          1


                            
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               
                       BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 670 OF 2003 


          The State of Maharashtra 
          (Through Shri D.R. Nikmar
          P.I. ACB, Ahmednagar) 
                                                        ..APPELLANT 

                           -VERSUS- 

          Kundlik Sugandhrao Aravade 
          Age : 33 years, P.C.B. No.699, 
          Nagar Taluka Police Station, 
          Ahmednagar, R/o Ahmednagar, 
          Dist. Ahmednagar. 
                                                        ..RESPONDENT 
                                 ...
            APP for appellant/State : Mr. S.J. Salgare  
           Advocate for Respondent : Mr. Satej S. Jadhav 
                                 ...
                       CORAM : S.S. SHINDE, J.

Dated: May 09, 2017 ...

JUDGMENT :-

Heard the learned A.P.P. appearing

for the appellant/State and the learned

counsel appearing for the respondent.

2. This appeal is filed challenging the

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judgment and order of acquittal dated 3rd

July, 2003 passed by the Special Judge,

Ahmednagar in Special Case No. 3 of 1996.

3. The prosecution case, in brief, are

as under :-

(A) On 20th July, 1995, the tempo trax

bearing No.MH-16/9452 owned and driven by the

complainant (PW-1) Arvind Dagadu Sontakke,

resident of village Pathardi, Dist.

Ahmednagar met with an accident near Mehekari

Phata, resulting into damage to said vehicle.

In order to claim insurance from the

Insurance Company, the complainant required

the certified copies of the first information

report and the spot panchanama. Therefore, he

approached ASI Dange, Incharge of Kaudgaon

Police Outpost and who directed him to meet

Police Constable Bhalerao and Police

Constable Aravade i.e. the present accused,

who were attached to the said Police Outpost

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and had drawn the spot panchanama. Both these

Police Constables asked the complainant to

come after 8 days to collect the copies, but

when complainant approached them after 8

days, thereafter they asked him to come again

after two days, as the signatures of superior

officer were yet to be obtained on the

copies.

(B) Accordingly, the complainant again

came to meet them after two days, however, at

that time, they demanded the bribe amount of

Rs. 1,000/- for delivering the copies. They

further told him to pay this amount to one

Shri Gunjal, Builder and collect the copies

and driving license from Shri Gunjal only.

The request on the part of the complainant to

reduce the bribe amount was not adhered to.

Hence, on 21st August, 1995, the complainant

approached P.I. Shri D.R. Nimkar (PW-4) of

Anti Corruption Bureau, who recorded his

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complaint and directed to remain present on

the next day for laying the trap.

(C) On the next day, however, it was

found that both Police Constables Bhalerao

and the present accused were on Bandobast at

Nagar Taluka Police Station and hence, P.I.

Nimkar sent complainant and one of the panch

i.e. Prabhakar Darade to Nagar Taluka Police

Station for verification of demand. There

complainant could meet accused alone, who on

repeated request from complainant in presence

of panch Darade reduced the bribe amount to

Rs.500/- and reiterated his instructions to

pay the bribe amount to Gunjal on the next

day and collect the papers.

(D) Accordingly, on the next day, in the

office of Anti Corruption Bureau in presence

of complainant and panch witnesses Prabhakar

Darade and Namdeo Bhingardive preparations

for trap were made, use of ultra violet lamp

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and anthracene powder was demonstrated. The

anthracene powder was smeared on currency

notes of Rs. 500/- in the denomination of

Rs.100/- each. The instructions were given to

the complainant and panch Darade about paying

of bribe amount on demand only and giving of

signal about acceptance of that demand.

Pre-trap panchanama was drawn accordingly and

the raiding party went to Kaudgaon S.T. Stand

in Jeep. The complainant and panch Darade

went there along with others. At Police

Outpost accused was present and at their

gesture Gunjal took complainant and panch

Darade to the Ota of temple in the same

campus. Shri. Gunjal accepted the bribe

amount from complainant and kept it in his

shirt pocket. On giving signal, raiding party

arrived at the spot, caught hold of the

accused and Gunjal and seized currency notes

from Gunjal. They were verified under the

light of ultra violet lamp and blue glaze

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appeared thereon. Their numbers also tallied

with the numbers given in the pre-trap

panchanama. Accused and Gunjal were then

given opportunity to give their say in

writing, which opportunity they availed. The

detailed post-trap panchanama was carried out

at the spot itself and they were brought to

Nagar Taluka Police Station.

(E) Thereafter, the F.I.R. bearing C.R.

No. 139 of 1995 came to be registered against

Police Constable Bhalerao, the present

accused and Shri Gunjal. As a part of further

investigation, statements of witnesses were

recorded. The map of spot was drawn, relevant

papers were collected and sent to

Headquarters for obtaining sanction. On

receipt of sanction order, the charge-sheet

is filed in Sessions Court against present

accused and Shri Gunjal only. As during the

pendency of trial, Shri Gunjal has expired,

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hence the case is proceeded against present

accused alone.

4. The learned A.P.P. appearing for the

appellant/State invites my attention to the

evidence of the complainant and submits that,

the complainant categorically stated about

the demand and acceptance of Rs.500/- by the

respondent. It is submitted that, the

complainant's version gets corroboration from

the version of Shri Darade, who was

accompanying him as a panch witness. He

submits that, once the demand and acceptance

is proved, the Special Court ought to have

convicted the respondent.

5. The learned counsel appearing for

the respondent submits that, the demand of

gratification is sine qua non for prosecution

to succeed and the prosecution has failed to

prove and establish the demand being a

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pre-requisite, hence the proceeding itself

are vitiated. The learned counsel appearing

for the respondent submits that, the

informant in this case is necessarily an

accomplice since he is a participant in the

crime and therefore, his testimony cannot be

relied upon in any circumstances, unless

there is a corroboration to the allegations

and narration in his testimony. He submits

that, the shadow panch in this case i.e. P.W.

2 has no way supported the version of P.W. 1

in respect of the incident of demand and

trap. The learned counsel appearing for the

respondent submits that, the work of

providing the certified copies to the

complainant was not with respondent or any of

the accused and therefore, the complainant

does not inspire confidence in alleging that

he had repeatedly approached the accused for

getting his work done. That, the respondent

was not empowered to provide any certified

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copies to any one. PW-1 was aware of this

fact and hence respondent had no chance even

to mislead the complainant/P.W.1.

6. The learned counsel for respondent

submits that, the lapses, irregularities and

favoritism in investigation coupled with the

duplicity, vagueness and unnatural conduct of

the informant P.W.1 goes to show that the

case was not prosecuted with clean hands and

the respondent was victimized and informant

has used law as a tool to satisfy personal

vendetta. The learned counsel further submits

that, proving of demand to the core in this

case assumes utmost importance as presumption

under section 20 cannot be invoked, since the

tainted money was admittedly not accepted and

recovered from the respondent accused.

Therefore, the learned counsel appearing for

respondent submits that, even if two views

are possible the view favouring the accused

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has to be upheld. That, possibility of

another view by itself does not warrant

exercise of discretion by this Court.

Therefore, he submits that, the appeal

deserves to be dismissed.

7. I have considered the submissions of

the learned A.P.P. appearing for the

appellant/State and the learned counsel

appearing for the respondent. With their able

assistance, I have perused the entire notes

of evidence and also the judgment of the

Special Court so as to find out the findings

recorded by the Special Court are in

consonance with the evidence brought on

record by the prosecution or otherwise. It

appears that though main allegation by the

complainant Arvind Dagadu Sontakke (PW-1) was

against one Mr. Bhalerao, who was working as

Police Constable, the trial has not proceeded

against him. No reasons are forthcoming from

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the prosecution, why the prosecution was

given up against said Bhalerao.

8. Upon careful perusal of the evidence

of the complainant, his main allegation of

demand was against Shri Bhalerao. It appears

that, the version of the complainant (PW-1)

about the demand of bribe amount is not

consistent. If his deposition is carefully

perused, he stated in his deposition that, he

filed the application on 22nd August, 1995 for

getting the certified copies of the first

information report and the spot panchanama.

However, if the allegations in respect of

demand are concerned, those are made against

Shri Bhalerao and the respondent-herein even

before filing such application for obtaining

the copies of the spot panchanama and first

information report. It further appears that,

neither Bhalerao nor Kundlik Arawade i.e.

respondent herein were authorized to issue

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such copies of the first information report

or the spot panchanama as the case may be. At

one stage, the complainant stated that,

Bhalerao and respondent herein agreed to

accept Rs.500/- and they asked him to bring

the said amount. However, at the second

breath, the complainant has stated in his

evidence that, the respondent herein told him

to give such amount to Shri Gunjal. It has

come on record that, Gunjal is no more and

died before the trial was concluded. In fact,

if the thrust of the allegations by the

complainant either in the complaint or in his

deposition before the Court is taken into

consideration, he had serious grievance

against Bhalerao, who behaved with him rudely

and asked him to come after two days. He has

further stated that, he decided to approach

the office of the Anti Corruption Bureau

because of the Police Constable Bhalerao

behaved with him arrogantly. Even during

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course of recording of his deposition, the

complainant stated that, Bhalerao demanded

money to him, and therefore, he decided to

approach the office of the Anti Corruption

Bureau. Therefore, if it was the grievance of

the complainant that, Bhalerao demanded the

money and because of him, the complainant was

aggrieved, no reasons are brought on record,

why the prosecution did not proceed against

said Bhalerao. Even in his cross examination,

the complainant admitted that, he went to

Nagar Police Station being aggrieved by the

demand of bribe amount by Bhalerao and his

arrogant behaviour. Even in his cross

examination, the complainant has stated that,

when the Police Constable Bhalerao demanded

money, he asked the complainant to give the

said money to Shri Gunjal, and when such

demand was there by Bhalerao only accused

Arwade respondent herein was present.

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9. In a trap case, the prosecution is

obliged to prove the demand by leading

clinching and cogent evidence. The evidence

of the complainant should get corroboration

from the shadow witnesses. In absence of such

corroboration, it is difficult to accept the

case of the prosecution that, there was

demand. In the present case, it was incumbent

for the prosecution to prove demand, which is

sine qua non for proving the prosecution

case, as held by the Supreme Court in the

cases of (i) Panalal Damodar Rathi V/s State

of Maharashtra1, State of Maharashtra V/s

Dnyaneshwar Laxman Rao Wankhede2 and C.

Sukumaran V/s State of Kerala3 , .

10. Coming to the evidence of Darade,

who acted as panch witness, his evidence is

silent about the demand of Rs.1,000/- by the

accused for giving the documents as alleged 1 AIR 1979 SC 1191 2 2009 AIR SCW 5411 3 2015 All MR (Cri) 1200 (S.C.)

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by the complainant. No where he stated

anything about the payment of agreed amount

or the demand or reduction of the bribe

amount from Rs.1,000/- to Rs.500/-. At the

most, his evidence only goes to show that,

the accused has told complainant to collect

the papers from Shri Gunjal. But there is no

whisper even for the sake of it in his

testimony that, any such talk relating to the

payment of bribe amount to the tune of

Rs.1,000/- or to Rs.500/- took place in

presence of the accused and the complainant.

Therefore, his evidence is not helpful to the

prosecution, in as much as, he is not saying

anything about the demand. Therefore, the

very case relating to verification, which is

put up by the prosecution loses its

credibility and become impossible to accept

in view of the evidence of panch witness

Shri Darade.

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11. Upon careful perusal of the findings

recorded by the Special Court, it appears

that, there is minute scrutiny of the

evidence of the prosecution witnesses brought

on record. The Special Court has gone to the

root of the evidence of the prosecution

witnesses and found that, the evidence of

complainant suffers from omissions. The

Special Court has done in depth examination

of the contents of the complaint, vis-a-vis,

the deposition before the Court and found

that, the evidence of the complainant suffers

from substantial omissions. On the whole, the

Special Court found that, the evidence of the

prosecution witnesses suffers from

contradictions, omissions and exaggerations,

and therefore, makes it unworthy to believe

the same. In my opinion, the findings

recorded by the Special Court are in

consonance with the evidence brought on

record by the prosecution and there is no

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infirmity or perversity in those findings.

The view taken by the Special Court is a

plausible view. Therefore, once the plausible

view is taken by the Special Court, even if

for a moment it is assumed that, an another

view is possible on the strength of evidence

brought on record by the prosecution, the

same is no ground to interfere in the order

of acquittal, in view of the settled position

of law by catena of decisions of the Supreme

Court and various High Courts.

12. In the light of discussion herein

above, the inevitable conclusion is that the

Appeal filed by the State shall fail.

Accordingly the Criminal Appeal stands

dismissed.

(S.S. SHINDE, J.)

...

SGA